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0d. From the general to the individual;
- After considering the arguments of the parties that were detailed at length in the Motion and Response as well as in the framework of the argument before me, in the application of the considerations and criteria set out in the case law, I found that the motion to remove the arbitrator from his position should be rejected.
- First, I will address the delay in submitting the application, as well as the timing of its submission.
The basis of the motion was claims against statements made by the arbitrator in the hearings held before him, including in the framework of the hearing on September 7, 2023, while the application before me was filed on January 15, 2025.
- In the framework of the application, I did not find a satisfactory explanation for the considerable delay in the filing of the application that was filed after the arbitrator's order was given to file summaries. In the court rulings that were given in the matter of motions to disqualify a judge, it was held that the timing of the filing of the motion for disqualification with delay is sufficient to bring about its rejection.
This is how it was determined in Other Municipality Applications 1840/21 Eli Lang v. State of Israel - Israel Land Authority [Nevo] (March 24, 2021):
"These decisions [The decisions that are the subject of the motion for disqualification in Shem - Z.A.] were given long before the appellants requested the disqualification of the panel (about nine months and about five months before the request for disqualification, respectively), and as appears from the letter of appeal, most of the appellants' arguments are directed against the decisions in these motions, and the statement they attribute to the panel from the hearing on March 3, 2021 is added to this. In these circumstances, the argument that the court's opinion is 'locked' regarding the acceptance of the contempt motion is tainted by a significant delay that in itself justifies its rejection." (Paragraph 8 of the judgment). See also: Civil Appeal 4914/19 Estate of the late Abd al-Qader Nasser z"l v. Israel Police Lev HaGalil North Regional Station [Nevo] (November 11, 2019). See and compare Civil Appeal 5208/20 David Fischer v. Issachar Bar Hillel [Nevo] (September 3, 2020) (hereinafter: "The Fisher Matter").
- As detailed below, Even on the merits of the arguments, I found that the application should be dismissed.
- First of all, it should be emphasized that The parties knew from the first day of the arbitration and from the decision of the appointment that the arbitrator appointed was not a lawyer but a construction engineer. Therefore, any argument of the Applicant directed at the arbitrator's training and expertise and the extent of his suitability to decide the dispute should not be heard as establishing grounds for his removal from office, all the more so at the time of the submission of the summaries.
- From the Applicant's arguments, Referring to the arbitrator's statements that were made during the conduct of the arbitration hearings, it appears that these were quoted by her in isolation from the context in which they were made, while the Applicant quotes the arbitrator's statements in a specific manner, without referring at all to what was said by the parties and their counsel, before and even after his statements, and without mentioning the context in which they were said. For example;
- The Applicant's reference to the arbitrator's words in the minutes of the hearing of September 29, 2024, at p. 434 of the application, line 22: "If they had a mind, the problem is that he declared without reason." During the argument of the Applicant's counsel, Hela confirmed that he did not know who the arbitrator meant when he said "that he declared". It should be noted that the counsel for the parties represented in the application before me do not serve as attorneys representing the parties in the arbitration proceeding.
- The Applicant's referral to the arbitrator's statement at the hearing of September 7, 2023, at p. 368 of the motion, "I would have saved this case." First of all , it should be noted that this is a statement that cannot be attributed as being directed specifically at the Applicant. This is a general statement that relates to a case that is being conducted in the arbitration proceeding, which is indisputably composed ofmutual claims by both parties. Second, this is a statement that was made about a year and three months before the motion to transfer the arbitrator was filed, and it should not be accepted even for the reason of delay in raising it. Thirdly, I am of the opinion that it would have been appropriate to bring in full the context in which the statement was made in order to understand that it was not made in a vacuum towards one of the parties, but rather in the course of an argument between the parties' counsel. From the minutes of the hearing of September 7, 2023, it can be learned that at the end of the hearing (p. 121 of the transcript), a dispute arose between the parties' counsel regarding the agreement reached by the parties in court, regarding the identity of the arbitrator:
"Adv. Nakar (counsel for the applicant): I asked that the engineer also be a lawyer.